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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority because of a
negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute. It concerns two proposals which would
establish criteria to define the local commuting area for certain employees
whose permanent duty stations were changed.

For the reasons discussed below, we find that there are
no issues before us as to whether the disputed proposals are inconsistent with
applicable law, rule or regulation. Therefore, the appeal must be
dismissed.

II. Background and Proposals

The two proposals contained in the petition for review
respond to the Agency's definition of the local commuting area for its
subdistrict office in Pineville, West Virginia. According to the record, the
Agency decided to close a subdistrict office in Princeton, West Virginia, and
consolidate its operations with those of an office located in
Pineville.

The parties met and successfully negotiated a memorandum
of understanding concerning the closing of the Princeton office and the move to
Pineville. As indicated in an unfair labor practice charge later filed by the
Union, the negotiations leading to the memorandum "did not include discussion
regarding transfer of function, commuting area, or severance pay." Attachment 3
to Agency letter of May 2, 1988. Thereafter, the Agency determined that both
Princeton and Pineville should be included in the same local commuting area.
The record reflects that the two offices previously were in separate local
commuting areas. According to the Union, the Agency's decision had significant
implications for employees of the Princeton office with respect to such matters
as their entitlement to moving expenses. Reply Brief at 18-22.

Learning of the change in the commuting areas, the Union
filed an unfair labor practice charge alleging that it was not officially
notified of nor given the opportunity to bargain over the change. The parties
resolved the dispute with a settlement agreement, dated June 2, 1987. They
agreed to negotiate "concerning the impact and implementation of the [Agency's]
decision to change the commuting area." Attachment 1 to Agency letter of May 2,
1988.

The parties subsequently met as provided for in the
settlement agreement, but reached no accord on any matters presented. The Union
then filed another unfair labor practice charge alleging that the Agency had
failed to bargain in good faith. The Authority's Regional Director declined to
issue a complaint on the ground that the Union proposals "address the
substance, not the impact and implementation of the Activity's decision" and,
therefore, were beyond the scope of the bargaining obligation, as defined by
the prior settlement agreement. Union reply brief at 10.

Among the Union proposals presented at the bargaining
session held pursuant to the settlement agreement are those which are the
subject of this appeal:

A. Proposal 1

(2) The definition of a commuting area shall be
determined to be 10 miles within the radius of the permanent duty station for
PCS [permanent change of station] purposes.

B. Proposal 2

The commuting area as per item (2) shall be defined on
a case-by-case basis and take into consideration:

(1) Economic conditions,

(2) Availability of public transportation,

(3) Road conditions and terrain,

(4) Accessibility to public schools, churches, medical
facilities and availability of housing.

The Agency contends that this appeal is not properly
before us. It asserts that it has never advised the Union that the disputed
proposals were inconsistent with applicable law, rule or regulation. Rather,
the Agency states that it has consistently maintained that it has no duty to
bargain over the proposals. The Agency points out that in the settlement
agreement reached by the parties subsequent to the Union's filing an unfair
labor practice charge against the Agency, the Union agreed to bargain with
management solely over the impact and implementation of the decision to
consolidate the Princeton and Pineville commuting areas. In signing the
settlement agreement, the Agency asserts that the Union waived its right to
negotiate over the substance of the Agency's commuting area decision, and that
the two proposals in dispute concern the substance of that decision.

B. The Union

The Union asserts that the petition for review is
properly before us. It argues that the Agency head's refusal to state expressly
that the proposals were nonnegotiable was, in effect, a finding that the
proposals were nonnegotiable, and that the settlement agreement was not a
waiver of its right to bargain on the substance of management's decision to
consolidate the two commuting areas.

The Union reasons that the Agency's lack of
responsiveness to the Union's request for an allegation of nonnegotiability
constituted a constructive declaration that the proposals are nonnegotiable.
The Union also asserts that the Agency's claim that the proposals concern the
substance of its commuting area decision "is nothing more than an allegation
that the union's proposals are in violation of section 7106(a) or section
7106(b)(1) of the Statute." Reply Brief at 6. Additionally, the Union states
that an Agency representative orally declared during collective bargaining that
the proposals interfered with management's rights. It views the Agency's
failure to disavow that alleged oral declaration in its written response to the
request for an allegation as ratification of the Agency representative's oral
position.

The Union contends that the settlement agreement obliged
the Agency to bargain over negotiable matters relating to the impact and
implementation of its decision, and "any proposals proffered by the union which
were otherwise within the duty to bargain." Reply Brief at 11. The Union
concedes that the Agency's decision to close the Princeton office was
nonnegotiable as a management right. However, it asserts that "the union has
the right to bargain on the 'impact and implementation' of that decision with
respect to the decision to close, and fully on the determination of
the commuting area." [Emphasis in the original.] Reply Brief at
12.

IV. Analysis and Conclusions

A. Factors Governing the Jurisdictional
Question

Under section 7117 of the Statute and Part 2424 of our
Rules and Regulations, we will consider a petition for review of a
negotiability issue only where the parties disagree over whether a proposal is
inconsistent with law, rule or regulation. SeeOverseas Education
Association, Inc. and Department of Defense Dependents Schools, 29 FLRA
628, 636-37 (1987), petition for review filed sub nom.Overseas
Education Association, Inc. v. FLRA, No. 87-1575 (D.C. Cir. Oct. 14,
1987).

Where the conditions for review of negotiability issues
have been met, a union is entitled to a decision from us as to whether a
proposal is negotiable under the Statute, despite the presence of additional
issues in the case, for example, an alleged conflict between a proposal and a
controlling agreement. SeeAmerican Federation of Government
Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983) (AFGE,
Local 2736). To the extent that there are additional issues regarding the
duty to bargain in the specific circumstances of a case, those issues should be
resolved in other appropriate proceedings. SeeAmerican Federation of
Government Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base,
Michigan, 14 FLRA 302, 306 n.6 (1984) (Wurtsmith). Accordingly, the
claimed existence of threshold duty to bargain questions does not preclude our
determining the negotiability of proposals that are otherwise properly before
us.

A different situation is presented, however, when
threshold duty to bargain issues are raised concerning a proposal and the
conditions for review of the negotiability issue have not been met. Neither the
court's decision in AFGE, Local 2736 nor the Authority's decision in
Wurtsmith addressed that situation. Here, as noted, the Agency contends
only that it is not obligated to bargain over the proposals because the
settlement agreement is a waiver of the Union's right to negotiate on the
subject matter of the proposals. The Agency expressly declines to argue that
the proposals conflict with law, rule or regulation. Thus, as reflected in the
parties' arguments, the crucial first question to be answered is whether there
is a real dispute over the proposal's conflict with law, rule or regulation.
Seealso, American Federation of Government Employees, Local
12, AFL-CIO and Department of Labor, 26 FLRA 768, 769-70 (1987)
(Department of Labor).

B. The Petition Does Not Satisfy Jurisdictional
Requirements

1. The Agency's Response to the Union's Request
for an Allegation Does Not Constitute a Constructive Determination of
Nonnegotiability

We reject the Union's argument that the Agency's refusal
to declare the proposals either negotiable or nonnegotiable constituted a
constructive declaration of nonnegotiability. The record does not support the
Union's suggested construction. The Agency provided a written response to the
Union's request for an allegation of nonnegotiability. The Agency's response
stated that it had no duty to bargain over the disputed proposals because of
the prior settlement agreed to by the Union. The Agency did not state that the
disputed proposals were nonnegotiable under law, rule or regulation. Therefore,
the circumstances here are unlike those covered by section 2424.3 of our Rules
and Regulations which treats an agency's failure to respond in a timely manner
to a union's written request for an allegation as a constructive declaration of
nonnegotiability. See, for example, Patent Office Professional
Association and Patent and Trademark Office, Department of Commerce, 21
FLRA 580, 581 (1986).

Also, the Agency, in its statement of position responding
to the petition for review, again relied exclusively on the settlement
agreement, stating that "at no time during or subsequent to the July, 1987
negotiations where the proposals at issue herein were presented to the agency
did the agency advise the union or declare any of the union's proposals to be
non-negotiable." Statement of Position at 1. Therefore, in our view, the
Agency's response to the Union's request cannot be deemed a declaration of
nonnegotiability--constructive or otherwise. Rather, the Agency's allegation
fully set out its position on the proposals. That position did not include a
contention that the proposals were nonnegotiable.

The Agency's acknowledgement that the disputed proposals
concern the substance of its decision to consolidate the two commuting areas
does not constitute an allegation that the proposals are nonnegotiable. That
acknowledgement relates only to its position that the two proposals were
removed from the duty to bargain by the settlement agreement.

2. The Alleged Oral Statement Concerning the
Proposals' Negotiability Does Not Constitute an Allegation of
Nonnegotiability within the Meaning of Section 2424.3 of our Rules and
Regulations

Notwithstanding the Agency's position that it never
declared the proposals to be nonnegotiable, the Union claims that an Agency
representative at the bargaining table orally declared that the proposals
interfered with management rights. In support of this claim, the Union
submitted statements from Union representatives who were present at the
bargaining session in question. Attachments to Union letter of May 5, 1988. In
further support of its claim, the Union later furnished the affidavit of one of
its headquarters employees. Attachment to Union letter of May 23, 1988. We
again note that the Agency denies that any such oral declaration was made at
the bargaining session, or at any time subsequent to the session.

Even if an oral declaration of nonnegotiability had been
made at the bargaining session, our Rules and Regulations provide for the
resolution of negotiability appeals on the basis of the written record, unless
we find it appropriate to hold a hearing. See Part 2424 of our Rules and
Regulations. Specifically, section 2424.3 of our Rules requires that "the
agency shall make the allegation [of nonnegotiability] in writing and serve a
copy on the exclusive representative." Thus, whatever may have transpired in
oral exchanges between the parties at the bargaining table is not material to
the resolution of a negotiability appeal. SeeNational Federation of
Federal Employees, Local 1650 and U.S. Forest Service, Angeles National
Forest, 12 FLRA 611, footnote at 611 (1983) (Authority noted that time
limit, under section 2424.3 of the Rules, begins to run from date agency's
written allegation is served on union--not from date agency makes oral
allegation).

Moreover, the Agency did respond in writing to the
Union's request for an allegation of nonnegotiability by stating that its
refusal to bargain over the proposals was based on the fact that they concerned
the substance of the decision to modify the commuting areas, and, consequently,
were beyond the scope of the applicable settlement agreement. The Agency
reiterated its position in its statement of position, noting that it "has not
challenged any of the [U]nion's proposals on the basis that they are
inconsistent with law, rule or regulation."

3. Questions as to the Scope of the Duty to
Bargain under a Settlement Agreement Are Not Appropriate for
Resolution in a Negotiability Appeal

As previously noted, the Agency's position that it is
under no obligation to bargain on the disputed proposals is based on a
settlement agreement with the Union, arranged with the aid of the Authority's
regional office. That document, dated June 2, 1987, states, "The Department
agrees to bargain with the [Union] concerning the impact and implementation of
its decision to change the commuting area." Also, as we noted above, in a
bargaining session subsequent to the settlement agreement, the Agency refused
to bargain over proposals, including the ones at issue here, addressing the
substance of the decision to consolidate the two commuting areas. In declining
to bargain, the Agency relied on the terms of the settlement
agreement.

The question of whether the Agency was justified in
basing its refusal to bargain over the proposals on the terms of the settlement
agreement is not appropriate for resolution in an negotiability appeal. Rather,
that issue is appropriate for resolution in an unfair labor practice
proceeding. We note that, after the Agency refused to bargain on the proposals
at issue because it viewed them as going beyond the scope of the settlement
agreement, the Union filed an unfair labor practice charge alleging that the
Agency refused to bargain in good faith. The Regional Director refused to issue
a complaint, finding that the Agency properly declined to bargain on the
proposals which went beyond the scope of the settlement agreement. The record
does not indicate that the Union appealed the Regional Director's
action.

In summary, we find that, in these circumstances, there
is no issue before us concerning the negotiability of the proposals themselves.
Therefore, the conditions governing review of negotiability issues, as
described in section 2424.1 of our Rules and Regulations have not been
satisfied. SeeAmerican Federation of Government Employees, AFL-CIO,
Local 3369 and Social Security Administration, Midtown District Office, 31
FLRA 1114 (1988).

Accordingly, we will dismiss the Union's petition for
review, without prejudice to the Union's right to file a negotiability appeal
if the conditions governing review of negotiability issues are met and if the
Union chooses to file an appeal. SeeDepartment of
Labor.

V. Order

The petition for review is dismissed without regard to
the Union's right to file a negotiability appeal if the conditions governing
review of negotiability issues are met and if the Union chooses to file such an
appeal.